A federal judge in New York on Tuesday rejected the Trump administration’s plan to switch legal teams in the census case, throwing another wrench into the government’s drive to overcome a Supreme Court ruling that blocked its plan to ask every U.S. household how many residents are citizens.
The Justice Department announced on Sunday it was pulling its full team from the census cases and swapping in a fresh crew drawn from other units. Attorney General William Barr said on Monday that some lawyers on the case felt uncomfortable continuing after telling courts the citizenship question would be dropped, only to be contradicted the following morning by a furious tweet by President Trump.
But plaintiffs including the state of New York and the American Civil Liberties Union objected to the attorney switch, saying the government failed to justify the swap under court rules requiring satisfactory reasons for changing lawyers and assurances that litigation wouldn’t be sidetracked.
“Measured against those standards, [the government’s] motion is patently deficient,” U.S. District Judge Jesse Furman said in a three-page order. It provided “no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.”
“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice,’ ” said New York state Attorney General Letitia James, who represents a coalition of largely Democratic-led states and local governments challenging the citizenship question. “Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel.”
“The Justice Department owes the public and the courts an explanation for its unprecedented substitution of the entire legal team that has been working on this case,” said ACLU attorney Dale Ho, who represents immigrant-rights groups. “The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth.”
In Washington, the U.S. Justice Department declined to comment.
In January, Judge Furman blocked the citizenship question after finding that Commerce Secretary Wilbur Ross’s official rationale for posing the query—to help protect minority voting rights—wasn’t credible. The ruling, which the Supreme Court upheld last month, was based on requirements that agencies act with candor and a reasoned basis in making policy.
Federal courts in California and Maryland subsequently reached similar conclusions. The latter court currently is conducting an inquiry into whether the citizenship question was intended to discriminate against Hispanics, an allegation the Justice Department denies.
Judge Furman observed that until losing at the Supreme Court, the Trump administration had pushed courts to expedite proceedings.
“This case has been litigated on the premise—based in no small part on Defendants’ own insistence—that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” he wrote. That was difficult to square with a wholesale switch in legal teams, he wrote, observing that the government’s next filing was due in three days.
Should the Justice Department follow through on Mr. Trump’s goal of asking the district court for another chance, “time would plainly be of the essence in any further litigation relating to that decision,” the judge said.
The judge’s order allowed only two lawyers who have changed jobs to leave the case. The remaining nine will remain counsel until each files an individual affidavit justifying their departure, the order said.
This wasn’t the first time government attorneys have withdrawn from the case, Judge Furman noted. “In August 2018, lawyers from the United States Attorney’s Office for the Southern District of New York—‘the office that normally represents the Government in this District’—withdrew as counsel,” he wrote.
The switching out of the DOJ lawyers was a highly unusual shakeup.
James Burnham, the politically appointed head of the federal programs branch, told Mr. Barr a change made sense. A new team whose members had never dealt with the citizenship question wouldn’t be forced to answer damaging questions about why they were suddenly backtracking on arguments they had made in court for months, current and former officials said.
The former litigation team consisted of members of the department’s federal programs branch, which specializes in defending the administration against lawsuits and policy challenges. For the new team, lawyers from the Office of Immigration Litigation were recruited.
OIL has defended the Trump administration’s immigration policies and handled other politically sensitive issues. One of its lawyers came under fire for suggesting in an argument that officials didn’t necessarily need to provide toothbrushes, soap or beds for migrant children detained at the border for the conditions to be considered safe or sanitary.
Also on the new team is the politically appointed leader of the department’s consumer protection branch, who worked in the White House counsel’s office until May.
Members of the former team believed their options to put the question on the census were extremely limited and were caught off guard by Mr. Trump’s tweet saying he wished to push forward. But Mr. Barr told the New York Times he had been in regular talks with Mr. Trump about the census since the Supreme Court ruled and was aware of his desire to find a way to get the question on the 2020 form.
None other than Ann Coulter declared on Friday, “The only national emergency is that our president is an idiot.” She has a point. The president’s declaration, in the words of Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.), amounts to “a power grab by a disappointed President, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.”
Even the best-executed power grab would have been difficult to defend in court. There is no emergency (border crossings are down), the illegal drug problem (despite Trump’s contradicting his own administration) isn’t primarily a border problem, and the humanitarian problem that does exist (families fleeing Central America to request asylum) won’t be solved by a wall.
Nevertheless, in 10 steps, Trump irretrievably ruined whatever legal case he would have had.
- First, he did not address the issue when the Republican Party held majorities in both the House and Senate, when, for example, he had the ability to push through measures on reconciliation.
- Second, he rejected a deal for $25 billion in border security in exchange for legalization of “dreamers,” which doesn’t sound like the sort of thing you’d do in a real emergency.
- Third, he signed a continuing resolution that kept the government running until Dec. 8, 2018. Again, you wouldn’t agree to that in the face of a real emergency.
- Fourth, Congress passed another continuing resolution to keep the government open until Dec. 21, 2018.
- Fifth, the president provoked a 35-day shutdown that ended with a three-week continuing resolution. Again, this doesn’t give off an emergency “vibe.”
- Sixth, as appropriators negotiate, the president repeatedly threatens to us emergency powers until Congress gives him what he wants. The critical precondition for an emergency declaration is lack of congressional compliance.
- Seventh, appropriators reach agreement — and Trump signs it.
- Eighth, there is no report or analysis demonstrating why Congress’s response is inadequate. Instead, Trump declares an emergency on the same day as the signing, a transparent effort to eclipse his utter failure to deliver on a campaign promise.
- Ninth, at a bizarre Rose Garden press conference on Friday, Trump declared, “I didn’t need to do this. . . . I just want to do it faster.” It is difficult to imagine a more damaging confession that the emergency is figment of Trump’s frail ego and thirst to avoid disappointing his base.
The Debrief: An occasional series offering a reporter’s insightsIn 2014, Donald Trump sued to have his name taken off a pair of Atlantic City casinos he built three decades earlier that had gone bankrupt.
“It’s really indicative of how we all know he thinks so in-the-moment and so off-the-cuff that it winds up being dangerous,” said Jack O’Donnell, former president of the Trump Plaza Hotel and Casino, one of the properties from which Trump removed his name.
.. “The whole idea of once things are going wrong, he takes no ownership — that’s just Trump,” O’Donnell added. “He does not own anything that goes wrong. The problem is, he’ll blame anybody. Obviously, it’s the Democrats in this situation.”
.. He alternated between insisting that Mexico would pay for the wall through a convoluted, and false, interpretation of a new trade deal and suggesting that the U.S. military and other agencies would find money in their existing budgets to build the barrier if lawmakers failed to deliver — despite restrictions on federal agencies reprogramming funding.
.. And the president even began rebranding “the wall,” parrying Democratic denunciations of a concrete monolith at the U.S.-Mexico border by announcing that his administration would build “artistically designed steel slats.” That quickly prompted widespread derision.
.. He even appeared to be conspiring with prominent conservative talk show hosts to help guide him. Rush Limbaugh boasted that Trump had “gotten word to me” that he would shut down the government if he failed to win the wall funding.
By Friday, a desperate Trump had seized on the “nuclear option” proposed by congressional border hawks to discard the Senate’s long-standing filibuster rules and approve with a majority vote a House-passed spending plan that included the $5 billion.
.. Aides announced that he had indefinitely postponed his winter vacation at his Mar-a-Lago resort in south Florida, which was scheduled to begin Friday evening.
.. In the case of his casinos, Trump had divested himself of control of the properties five years before he sued the new owners, having retained a 10 percent stake for the continued use of his moniker.
In his lawsuit to remove his name, Trump asserted that the properties, which twice under his management had faced bankruptcy, had fallen into disrepair and tarnished a Trump brand that “has become synonymous with the highest levels of quality, luxury, prestige and success.”
.. To O’Donnell, the episode was “classic Trump.” The president, he said, had taken ownership of the shutdown in the televised showdown with Schumer and Pelosi to demonstrate his toughness to his base — without a plan to deal with the aftermath.
“That’s really what this was: ‘I’m a tough guy. Don’t think I can’t handle the heat,’ ” O’Donnell said. “The fact is, he can’t handle it.”